This headline is entirely wrong. Same-sex marriage is absolutely, unequivocally not legal under federal law. Ever. At any time.

That is because of a federal law known as the Defense of Marriage Act (usually abbreviated DOMA). Public Law 104-199 was passed by overwhelming bipartisan majorities in both houses of Congress (342-67 in the House, 85-14 in the Senate), and signed into law by President Bill Clinton on September 21, 1996.

One part of the Defense of Marriage Act provided that states could not be obligated to recognize same-sex marriages contracted in other states.

The other key provision of DOMA (found in Section 3 of the bill), now under challenge in several courts, defines marriage for all purposes under federal law. It states:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word marriage means only a legal union between one man and one woman as husband and wife, and the word spouse refers only to a person of the opposite sex who is a husband or a wife.

What Grant actually describes is not any ambiguity about the state of the law, but rather the duplicity of the current administration under President Obama and Attorney General Eric Holder. It is no secret that Obama would like to see DOMA repealed, but Holder has stated that in the meantime, Section 3 will continue to be enforced by the Executive Branch.

Holders actions, however, have belied those words. The latest example, described in Grants blog post, was Holders decision to overturn a decision by the Board of Immigration Appeals, which had ruled against an application for resident status by an Irish man who entered into a civil union with an American in New Jersey. Holder asked the Board to consider the case again, and determine whether, absent the requirements of DOMA, respondents same-sex partnership or civil union would qualify him to be considered a spouse under the Immigration and Nationality Act. This is irrational, given that the requirements of DOMA are not absent, and it is utterly hypocritical when viewed in light of Holders promise to continue enforcement of DOMA.

In addition to the misleading headline, there is one other part of Grants blog post that requires some careful fact-checking. It is this paragraph:

One reason for the controversies is that the Department of Justice is opposed to the law. The opposition, however, only applies in certain jurisdictions. Contrary to headlines, the Department of Justice will defend DOMA in some courts. In February, Attorney General Eric Holder informed the Congress that the Department of Justice is opting out of defending DOMA in the U.S. Court of Appeals for the Second Circuit. In other words, the DOJ will no longer defend the act if a gay couple appeals a decision in New York, Connecticut, or Vermont, but it will defend the act in other states.

Really? I have not hesitated to accuse the Attorney General of hypocrisy with regard to DOMA, but not with quite such a level of hypocrisy that they would argue in one court that a law is unconstitutional while simultaneously arguing in another court that it is not. Yet that is what Grant appears to be stating is the current stance of the Justice Department.

I think Mr. Grant has mis-read (or perhaps not read all of) Mr. Holders letter to Congress on February 23. The very opening sentence of that letter reads,

After careful consideration, including review of a recommendation from me, the President of the United States has made the determination that Section 3 of the Defense of Marriage Act (DOMA), 1 U.S.C. 7,as applied to same-sex couples who are legally married under state law, violates the equal protection component of the Fifth Amendment.

This amounted to a reversal of position for the Justice Department, which had defended DOMA, in the past, in other cases. For example, a federal district court judge in Massachusetts last year declared DOMA unconstitutional in a pair of cases, which are now on appeal to the First Circuit. The Justice Department filed briefs defending DOMA in those cases as recently as January 13 of this year.

To understand why the administration reversed its position, you must understand the different standards for deciding equal protection casesrational basis vs. heightened scrutiny.

When a law creates a classification that treats some individuals or groups differently from others (in this case, treating opposite-sex couples differently from same-sex couples), it may sometimes be challenged as violating the constitutions guarantee of the equal protection of the law. However, most laws are judged under a rational basis test, meaning that a legislative enactment will be upheld as long as there is any conceivable rational basis for the classification.

However, heightened scrutiny usually applies to classifications based on characteristics considered immutable and irrelevant to legitimate policy objectives, possessed by groups who are minorities or politically powerless and have been subject to a history of discrimination. The classic examples are race and sex. Use of a heightened scrutiny standard increases the chances of a court striking down a legislative enactment.

Earlier cases challenging the constitutionality of DOMA (such as the Massachusetts cases mentioned above) had been filed in federal court circuits in which there was controlling precedent saying that classifications based on sexual orientation are subject only to a rational basis test. The DOJs briefs had argued that DOMA was constitutional by this standard.

The new lawsuits challenging DOMA in New York and Connecticut, however, were filed in federal courts located in a circuit (the 2nd) without any such precedent. Mr. Holder claims that this caused the DOJ to re-examine the question of the appropriate standard of inquiry, and that in turn led him to declare that classifications based on sexual orientation warrant heightened scrutiny. (It could be argued that defining marriage as the union of a man and a woman actually does not classify on the basis of sexual orientation at all, but that would require a separate blog post.)

Holder wrote, Given that conclusion, the President has instructed the Department not to defend the statute in Windsor and Pedersen (the two new Second Circuit cases).

What if the Second Circuit rejects the administrations heightened scrutiny argument? Holder stated,

If asked by the district courts in the Second Circuit for the position of the United States in the event those courts determine that the applicable standard is rational basis, the Department will state that, consistent with the position it has taken in prior cases, a reasonable argument for Section 3s constitutionality may be proffered under that permissive standard.

Here, Holder appears to stand by the Departments previous arguments under the more lenient standardbut he could hardly have done otherwise without appearing utterly foolish. But to say this means the Department will defend the act at all, as Grant states, seems a stretch. Note, for instance, the use of the passive voicea reasonable argument . . . may be proffered, not that we will proffer such an argument.

Even before making the statement above, Holder declared, This is the rare case where the proper course is to forgo the defense of this statute.

Still, the focus in Holders letter on the newer Second Circuit cases might be seen as still leaving some ambiguity about the DOJs defense of DOMA in other courtsuntil you reach the penultimate paragraph of the letter. Here, he states,

I will instruct Department attorneys to advise courts in other pending DOMA litigation [emphasis added] of the President's and my conclusions that a heightened standard should apply, that Section 3 is unconstitutional under that standard and that the Department will cease defense of Section 3.

The reason for the primary focus on the Second Circuit cases in Holders February 23 letter to Congress was one of timinghe concludes by warning Speaker Boehner (as the likely new defender of DOMA), A motion to dismiss in the Windsor and Pedersen cases would be due on March 11, 2011just sixteen days after the letter was sent. But courts in other pending DOMA litigation would be given the same statement.

The position of the administration on the defense of DOMA is now clearthe law violates the equal protection component of the Fifth Amendment and the proper course is to forgo the defense of this statute. As a result, the Department will cease defense of Section 3.

Tobin Grants claim that DOJs opposition [to DOMA] only applies in certain jurisdictions and that the DOJ . . . will defend the act in other states must be rated as incorrect.